Flinders and Carmine (No 2)

[2010] FamCA 1135

FAMILY COURT OF AUSTRALIA

FLINDERS & CARMINE (NO. 2) [2010] FamCA 1135

FAMILY LAW – CHILDREN – final orders – where the father has failed to take part in the proceedings – best interests – orders that the child live with the mother and that she have sole parental responsibility – orders that the father spend time with the child

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Mr Flinders

RESPONDENT: Ms Carmine

INTERVENORS: Mr and Mrs Carmine Senior

INDEPENDENT CHILDREN’S LAWYER: Ian Charman

FILE NUMBER: ADC 537 of 2009

DATE DELIVERED: 13 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 13 December 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Reynolds

SOLICITOR FOR THE RESPONDENT: S.R.G Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

COUNSEL FOR THE INTERVENORS: Mr Reynolds

SOLICITOR FOR THE INERVENORS S.R.G Lawyers

Orders

1. That the child, J, born … September 2003, live with the mother and that she have sole parental responsibility for the child. 

2. That the father spend time with the said child as such times as may be agreed between the parties. 

IT IS NOTED that publication of this judgment under the pseudonym Flinders & Carmine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 537 of 2009

MR FLINDERS

Applicant

and

MS CARMINE

Respondent

and

MR AND MRS CARMINE SENIOR

Intervenors

REASONS FOR JUDGMENT

1. I have before me today adjourned trial proceedings.  The first day of the Less Adversarial Trial was conducted before me on 28 September 2010.  No orders were made that day as there was no appearance by either party.  The proceedings relate to a young boy named J, who was born to the parties in September 2003 and who is, hence, seven years of age.

2. There is quite a history of disputation between the mother and the father in these proceedings, the first of the proceedings between them having been commenced very shortly after the child’s birth, namely on 18 November 2003.  The proceedings on that occasion were finally resolved quite some time later.  After more extended proceedings were filed, final orders were made on 13 August 2008.

3. That though was not the end of the proceedings between the parties as the father filed Contravention proceedings on 13 February 2009.  The proceedings were at that time initiated in the Federal Magistrates Court but were transferred to this Court on 29 October 2009.  The mother then filed a Response seeking final orders on 2 November 2009.

4. In that Response she sought orders that the child live with her and that she have sole parental responsibility for him and that any time that the father spent with the child be at times as were agreed between them.  She also promoted counselling in order to try and re-establish a relationship between the father and the child and further sought the appointment of an Independent Children's Lawyer, an order which was subsequently made by the Court.

5. The Court endeavoured to assist the parties in resolving their dispute by arranging a Child Responsive Program appointment and assessment for them.  There is a report provided to the Court by the then Family Consultant, Ms D on 6 January 2010.  The prospects for resolution, though, seemed grim at the completion of that assessment as the father refused to engage in any dispute resolution process with the mother.

6. The father was concerned at what he saw as the mother’s failure to abide earlier orders of the Court, a fact which the mother acknowledged but indicated that there were very good reasons for her failure to do so, reasons which reflected the child’s best interests.  Whilst Ms D indicated that the father had “a profound wish to be involved in his child’s life,” his conduct subsequent to that occasion has not demonstrated that he is committed to the process of re-engagement with his son.

7. Ms D strongly encouraged the parents to engage in a dispute resolution process in order to try and reach an agreement as to how the father’s relationship with the child may be progressed, but also in order to assist each of the parties in upgrading their parenting skills and capacity.  She recommended that there be a full family assessment conducted.

8. That family assessment did not occur essentially because of the father’s reluctance to fully and appropriately participate in the proceedings before the Court, thus providing the Court with limited opportunities to explore the exact orders that he sought and the manner in which he envisaged that any such orders would promote the child’s best interests.

9. In the earlier stages of the proceedings before the Court this year the father was represented, but a number of attempts to gain his presence in Court in order to try and progress the matter met with no success.  At the first attempt of the Court to pursue a Less Adversarial Trial process on 6 July 2010, the father did not attend, nor was the mother present, but she had very good reason in that she was ill at the time and hospitalised.

10. She has subsequently been released and for a time after her release lived with her parents but is now living only a short distance from them.  The mother and her parents are clearly close as she has received significant support from her parents during the course of these proceedings, to the extent of them filing proceedings in this Court on 6 July 2010 by way of an Application in a Case.

11. In that Application they sought leave to intervene and an order that the child live with them until the mother was discharged from hospital.  They have since that time and almost certainly prior to that time been very closely engaged with the child’s care and upbringing.  They were given leave by me on 6 July 2010 to intervene and have played an active role in the proceedings and in a number of areas surrounding the child’s care since that time.

12. They have pursued their role as guardian angels and on 21 September 2010 filed a further Application in a Case in which they sought the further adjournment of the Less Adversarial Trial proceedings in order to enable the mother to repair her health. 

13. I accordingly adjourned the Less Adversarial Trial proceedings which were listed before me on 28 September 2010 until today.  The father was represented at that time, but there was no attendance by him at those proceedings.

14. Concerned at the lack of genuine attention to the progress of the matter by the father I made a number of other orders on 28 September 2010, one of which was to this effect, and I quote, paragraph 3:

    The father either attend in person on the adjourned date or fully instruct his counsel to indicate whether or not he intends to take any further part in these proceedings, and if so what orders he intends to pursue upon noting that in the event of his non-attendance or non-pursuit of the matter the Court may well be inclined to make default orders dismissing all current proceedings before this Court.

15. The father has not attended Court today and I deem it appropriate to proceed to make final orders in these proceedings.  Other orders that I made on that date were that the father spend time with the child at times that were agreed with him and the maternal grandparents. 

16. On 21 September 2010 and today, the maternal grandfather filed affidavits detailing specifics of the times that the father had spent and not spent time with the child over the preceding months. 

17. A summary of the detail provided in those affidavits is to the effect that the father’s time spent with his son and his apparent interest in his son has been very sporadic.  He has not been reliable.  He would not have made it easy for the child in terms of reacquainting himself with his father, or in securing any consistency and structure in his young life.  I am satisfied that the mother and the grandparents are prepared to foster the relationship between the child and the father but within reason. 

18. I am satisfied that it would be appropriate today to make an order in favour of the mother as she seeks in the Response filed on 2 November 2009, and I am satisfied too that the maternal grandparents will do their best within what is reasonable and within the child’s bests interests to try and encourage and promote the relationship between the child and his father. 

19. Any orders that I make in proceedings of this kind must have regard to the provisions of part VII of the Act and of course particularly with reference to section 60CA which requires a Judge in my position when making a parenting order to regard the best interests of the kind as the paramount consideration.  In doing so I am guided to section 60CC of the Act which has a lengthy list of factors which must be considered when making orders in relation to children.  Those factors are divided into primary and additional considerations. 

20. The two primary considerations stand in direct juxtaposition to one another in requiring the Court to manage the difficult exercise of exploring the benefit to a child of having a meaningful relationship with both of the children’s parents as against the need to protect the child from physical or psychological harm. 

21. I am satisfied that the mother and her parents have done all that is reasonable and all that is within the child’s best interests to encourage a meaningful relationship between the child and his father and will continue to do so despite the father’s reluctance to commit himself fully to his relationship with his son. 

22. In my view, no great merit or benefit would flow from me exploring, in great detail, all of the additional considerations.  I have though considered all relevant matters in a general way, which arise pursuant to section 60CC(3) of the Act. 

23. Having considered all of those matters, having considered the recovery by the mother of her health, having considered the support that she gets from her own parents, having considered the commitment of the maternal grandparents to the child and to their daughter, there can be no question that the child’s bests interests would be reflected by me making final orders today in terms of the Response filed by the mother way back on 2 November 2009.

24. I discharge the appointment of the Independent Children’s Lawyer and remove all matters from the pending list.  I observe in making those orders that they have the full support of the Independent Children’s Lawyer.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 13 December 2010.

Associate: 

Date: